Kerala District Judge Selection- No Appointment Be Made From In-Service Candidates Against Bar Quota: SC [Read Order]

The Supreme court, while considering a writ petition challenging the constitutional validity of Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961, has directed that no new appointments be made from now onwards of in-service candidates against quota reserved for Bar.

In an order passed on 23rd August, the bench comprising Justice Rohinton Fali Nariman and Justice Surya Kant further observed:

"In case even if in-service candidate has been selected in the examination held earlier as against the Bar quota no further appointment to be made of such candidates. However, the practicing advocates who have been found selected for appointment, their result be declared and they be appointed subject to the outcome of the pending matter. All appointments that are to be made can only be made strictly in accordance with this order and not otherwise."

Background

The Petition titled "Jubiya A. & Ors. v. High Court of Kerala & Ors." was filed by five Judicial Officers of the Kerala Judicial Services, through Advocate Aljo K. Joseph, challenging the constitutional validity of Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961, whereby only practicing advocates with a practice of at least 7 years were eligible for appointment to the post of District and Sessions judge and in-service candidates were barred from such appointment.

The Kerala High Court had notified vacancies for the post of District and Sessions judge on 21.11.2017. As per Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961 (the said Rules), a practicing advocate with a practice of at least 7 years shall be eligible to undertake the examination for such appointment.

The Petitioners who are Judicial Officers in the Kerala Judicial Service, obtained permission from the Registrar of the high court to appear in the said examination.

Post declaration of result of the preliminary examination, the Kerala High Court, on a petition moved by certain advocate candidates, directed the Registrar of the high court to include additional candidates from practicing advocates, equal in number to the judicial officers (2 star and 3 star) to appear for the mains examination, vide interim order dated 10.12.2018.

Thereafter, the mains examination and viva voce was conducted and a list of selected candidates was published on 7.06.2019 wherein the Petitioners were selected. However, on 8.06.2019, a fresh list of selected candidates was published wherein names of the Petitioners had been removed and names of some candidates who were not in the preceding merit list were included. This new list had been prepared in pursuance of the interim order dated 10.12.2018.

Representations against the selection list dated 8.06.2019 were made by the Petitioners before the high court, but the same were dismissed as untenable in law in view of Supreme Court orders dated 10.05.2019 in Dheeraj Mor v. High Court of Delhi, SLP (C) 14156/2015.

Hence, the petitioners pursued the present petition seeking a direction to quash Rule 3(2)(f) of the said Rules and to hold that the petitioners were qualified as per Article 233 of the Constitution of India to be appointed as District and Sessions Judges in Kerala Higher Judicial Service, on the following grounds:

Incorrect understanding of the order in Dheeraj Mor v. High Court of Delhi

The petitioner has claimed that the fresh list of selected candidates had been published on an incorrect understanding of the Supreme Court order dated 10.05.2019 in Dheeraj Mor v. High Court of Delhi. In this case, the Court had stated that any practicing advocate "who had been found selected for appointment", could be appointed subject to the outcome of the pending proceedings. However, advocates who had not secured sufficient marks in the preliminary examination and were not eligible to be selected for appointment were wrongly included in the final merit list.

Exclusion of Judicial Services from the word 'service' used in Article 233 of the Constitution

Article 233(2) of the Constitution provides that "A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge…". It is submitted that the scope of the expression "not being in the service of the Union or State" can only be considered as a precautionary measure for separation of judiciary from the executive.

It was submitted that the Constituent Assembly intended to include only administrative and civil services in the word 'service' and never intended to include 'judicial services' in it. Thus the verdicts of the Supreme Court in Rameshewar Dayal v. State of Punjab, (1961) 2 SCR 847, and similar other pronouncements needed reconsideration.

Further, it was submitted that judicial officers in the subordinate judiciary could not be treated as persons in the service of the State because the Kerala Judicial Service Rules, 1991 expressly conferred all powers to maintain and control the subordinate judiciary on the High Court of Kerala, and not in the Legislature or Executive.

Constitutional validity of Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961

The validity of Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961 was contested as ultra vires Article 233(2) of the Constitution. It was submitted that the constitutional provision makes it clear that a person not already in the service of the Union or of a State becomes eligible for appointment as a District Judge if he has been an Advocate or a Pleader for at least seven years. It was submitted that the Petitioners were not under the service of the Union or the Executive and were wrongly excluded from the eligibility criteria provided in the said rule.

Judicial Service should be included in the '7 years' criteria

It was submitted that a person, whose antecedent practice as an Advocate and subsequent period of judicial service which add up to "not less than seven years", should be made eligible for appearing in the said examination. It was submitted that judicial service does not earn any disqualification to be appointed as a District Judge as he/she does not lose his/her qualification simply by opting to join the service after some years of practice. Reliance in this regard was also placed on Article 124(3) and 217(2).

Legally trained Minds

It was submitted that a judicial officer becomes more qualified and experienced as compared to a person with seven years of practice as an Advocate. Rather, the Supreme Court in High court of Madras v. R. Gandi & Ors., SLP (C) 892-893/2014, had held that "Appointments cannot be exclusively made from any isolated group nor should it be pre-dominated by representing a narrow group. Diversity therefore in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions".

Violative of Article 14 and 16

The Petitioners also submitted that while they were qualified to be promoted to the position of District or Sessions judge in due course, they had been denied the right to such appointment by way of a competitive exam. This was argued to be violative of Article 14 of the Constitution in as much as it discriminates between advocates and judicial officers and is not based on intelligible differentia.

It was also submitted that the exclusion of judicial officers from the said exam was violative of their right to equal opportunity under Article 16(1) of the Constitution.

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